Animal cruelty films raise issue of free speech

High court hears arguments in case

WASHINGTON 
The Supreme Court yesterday indicated that Congress had gone too far afield in its attempt to prohibit depictions of animal cruelty, in an animated free-speech argument that touched on bullfighting, cockfighting, dogfighting — and even a hypothetical “human sacrifice channel.”

The Obama administration asked the court to reinstate a 1999 federal law that bans the production and sale of videos that show torture, mutilation and death of animals. The primary focus of the law was to ban so-called “crush videos,” which appeal to a specific sexual fetish by showing such abuse of small animals.

An appeals court struck down the law and invalidated the only conviction prosecutors have made under the law, that of Robert Stevens of Pittsville, Va., who was sentenced to three years in prison for videos he made about pit bull fights.

Deputy Solicitor General Neal Katyal told the court that the law was “narrowly targeted” and contained exceptions for depictions that had “serious religious, political, scientific, educational, journalistic, historical or artistic value.”

Katyal ran into trouble with the justices, who said the law put the government in the position of making those subjective decisions, and ran afoul of First Amendment protections of free speech.

Justice Stephen Breyer indicated Congress should take another crack at writing a law that prohibits the “frightful things” it was targeting instead of forcing the courts into the “work of interpreting these very vague words.”

The law has split animal rights activists and free speech advocates. Groups such as The Humane Society of the United States have been active supporters of the law, saying it targets only depictions of acts that already are illegal and has helped dry up the market for the videos that depict animal abuse.

But media companies, civil liberties groups and others say the statute is overbroad and could leave at prosecutors' discretion whether to go after films that show hunting and bullfights and decide whether a documentary that shows animal abuse was prohibited, or political speech meant to discourage the practice.

Justice Samuel Alito appeared to be the most open to keeping the ban in place. Alito wondered whether coming up with hypotheticals to test a statute's constitutionality was the best way to decided its fate, but then he came up with one of his own.

“What about people who like to watch human sacrifice?” he asked, wondering whether Congress would have the power to keep people from ordering a “human sacrifice channel” if one was available from a place where such activity was legal.

Justice Antonin Scalia, an avid hunter, said the law violated the First Amendment by treating speech condemning depictions of animals fighting more favorably than speech celebrating the fighting. Scalia said the First Amendment does not allow the government to limit speech and expression, except for sex or obscenity.